Bay advocates say state lax in monitoring county stormwater controls

Local governments are charged with enforcing state regulations limiting polluted runoff from new development, and the state is supposed to check on them.

Only state officials acknowledge they aren't doing it.

Environmental advocates say the lack of state oversight could lead to lax enforcement on the local level — and put efforts to restore the Chesapeake Bay at risk. Rain washing dirt, fertilizer and other pollutants into storm drains and then waterways is a major source of bay pollution — the only category that has grown despite costly cleanup efforts.

The Maryland Department of the Environment hasn't reviewed any locality's enforcement of stormwater pollution controls since checking Charles County in 2006, and the last review of some counties dates back decades. The department is required by law to conduct the reviews every three years.

"We can pass whatever [rules] we want and have them written on paper," said Alison Prost, Maryland director of the Chesapeake Bay Foundation. "But if counties aren't following them, we have negative impacts we were trying to avoid."

Jay Sakai, water management director for the state environment department, said the agency should scrutinize local enforcement more frequently, but noted, "Our resources are quite small."

Of Maryland's 23 counties and Baltimore City, 18 haven't been reviewed since the 1990s, according to state figures. Frederick has gone the longest, since 1990, without a review. Among other counties in the region, Anne Arundel was last evaluated in 2005, Carroll in 1992, Harford in 1995 and Howard in 1997. Baltimore City was last reviewed in 1995.

Environmental groups fear Maryland may be failing to stem runoff from new development by not requiring the most recent state-prescribed controls mandated by a 2007 law.

In Baltimore County, for instance, environmental groups reviewed county records and found those stricter runoff control standards have been enforced on just three of 11 large new development projects approved in the past two years.

They also found the county has granted more than 360 waivers exempting developers from those standards — twice the number granted in Carroll, Harford and Howard counties combined.

"Without full compliance … we're going to continue to see more waters degraded and recovery slowed down considerably," said Richard Klein, a consultant who analyzed Baltimore County's recent stormwater decisions for the environmental groups.

Gardina did not dispute Klein's findings but said he doesn't believe the latest techniques to limit runoff are always the best. He also noted that some of the waivers were for projects already in the works — meaning they could be "grandfathered" to use methods allowed under older regulations.

Stormwater regulations — first implemented three decades ago and periodically tightened since then — require developers to minimize runoff from housing, retail, office and industrial projects.

Runoff is the source of 18 percent of the nutrients and sediment fouling the bay, and that share is growing as development continues, according to the Environmental Protection Agency.

Traditional means of controlling runoff include such measures as stormwater ponds, but in 2007 lawmakers raised the bar, requiring new projects to take more effective steps to keep runoff from leaving their boundaries.

The law now specifies that "as nearly as possible," rainfall running off new housing subdivisions, shopping malls or other sites should be no worse after construction than before ground was broken.

It took state officials three years to draw up new regulations, as development interests and local officials pressed for flexibility in meeting the requirements, and environmentalists warned against weakening the law's intent.

Under the rulesfinallyadopted in 2010, developers are supposedto minimize pavement and build rain gardens and other landscape features to collect rain close to where it falls, letting it soak into the ground much as it does naturally on undisturbed land. The rules require local governments to enforce these nature-mimicking techniques, known as "environmental site design," to the "maximum extent practicable."

Environmental advocates say failure by the state to ensure local enforcement could undermine other efforts to combat stormwater pollution from development built decades ago, before runoff controls were required. They point out that property owners in nine counties and Baltimore City must pay a new fee — derided by critics as the "rain tax" — to pay for those efforts.

Some state lawmakers have complained fees set by the localities are exorbitant and want to revisit the issue in the General Assembly session that begins this month.

Environmental advocates have also questioned why Baltimore County allowed many projects to proceed using older, less effective controls on pollution.

Criticism has been led by Klein, an Owings Mills resident who is president of Community and Environmental Defense Services. Klein conducted research for a group of environmental organizations, including the Chesapeake Bay Foundation and the Greater Baltimore Group Sierra Club.

Klein found the county has issued hundreds of waivers since 2010 and that about one-fourth of more recent projects approved by the county's administrative law judges are employing the environmental site design process. He also noted the county has reduced its staff assigned to review developers' stormwater control plans.

Officials in Carroll, Harford and Howard counties say they've also issued waivers for most projects that were already in the pipeline but require all new projects to use environmental site design concepts.

"We actually are seeing some of the grandfathered ones ... come in and use the new rules, which is a good thing," said Marsha McLaughlin, director of planning and zoning in Howard County.

Baltimore County's Gardina said the county lost three reviewers during an early-retirement initiative in early 2012 and that the department now has four full-time reviewers and one person who can perform inspections and reviews. But he defended the county's record.

"We've tried to use environmental site design where it's applicable and will have a good benefit," Gardina said. "Environmental site design is not a panacea. ... It depends on the hydrology of a particular site."

Michael Harrison, vice president of government relations for the Home Builders Association of Maryland, said environmental site design usually costs more for developers. "Sometimes, it evens out," he said. "Most of the times, it's more expensive."

Sakai defended the county's enforcement of stormwater regulations, calling its program "robust" and well-funded.

He also said the degree to which new development can be required to use environmental site design practices depends on soil type and topography, which vary across the state.

Roughly 55 percent of Baltimore County's soils can easily absorb runoff, compared with 61 percent in neighboring Harford County, according to data compiled by the U.S. Department of Agriculture's Natural Resources Conservation Council. But the difference is far smaller than the number of waivers issued would suggest, Klein says.

The state environment department has been focused on drawing up new stormwater control "permits" for the state's largest communities — part of a separate federal mandate regarding control of runoff from existing development as well as new construction.

More than three years late in meeting federal deadlines for the permitting process in Baltimore County, Baltimore City and Prince George's County, the state environment department issued new permits in late December. The state still must finalize permits for six other large counties.

Once those are in place, Sakai said, state staff can start to hold local officials accountable for performance. In the meantime, he said, his staffers have been meeting with local officials about the updated state stormwater regulations and a new manual on approved practices for handling runoff.

"This is a process," Sakai said. "If in fact there are discrepancies … or misunderstandings that are apparent, or deficiencies that are apparent in the way any local program is being run, I do agree that it's incumbent on us to get to the heart of that matter.

"But we've been going about this in a well-thought-out way," he said. "The approach here is not to go rushing in, counting waivers and decide if a program is good bad or indifferent."

Prost acknowledged Baltimore County has been a leader among localities in the state in restoring streams and taking other steps to reduce runoff from older existing communities. But she said environmental groups want to hear from county officials why so few new development projects are being required to make full use of the latest stormwater control techniques.

"Help us understand why this was justified," she said.

And she said the state needs to fulfill its legal responsibility for overseeing local performance "to make sure that new projects going forward don't have an impact."

The Maryland Department of the Environment is required by law to review every three years each locality's efforts to control polluted runoff from new development. Following are the years when, according to state data, the agency last checked stormwater-control efforts in Baltimore-area jurisdictions: